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When Seeking Permission To Obtain Fresh Expert Evidence - Nicholas Dobbs, Temple Garden Chambers

24/05/22. In Fernandez v Iceland Foods Ltd, the Claimant appealed against an order refusing his application for permission to substitute a fresh medical expert for an existing one. The decision includes a thorough summary of the applicable law and principles to be considered when parties seek to instruct fresh expert evidence (at [18]-[27]). The judgment also reiterates the well-established principle that an appellate court will not lightly interfere with a case management decision following the exercise of a discretion. In the absence of an error of law, the court will only interfere where the judge’s exercise of discretion has exceeded the ambit within which reasonable disagreement is possible (at [25]).

By way of summary, the Claimant had instructed an ophthalmic expert to consider whether his employment and the nature of this work had caused him to suffer an eye injury, or whether those factors had at least made a significant contribution to it. The expert’s conclusion was in effect supportive of the case on causation, but guarded as to how long the Claimant could have continued before there was a spontaneous haemorrhage in any event due to an underlying condition (advanced diabetic retinopathy). However, after receiving further evidence, the expert...

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